Speech Restrictions on Judges

More on occupational speech restrictions: I’ve come across this recent piece by Texas A&M law prof Lynne Rambo, dealing with First Amendment issues around judicial speech. Rambo’s article notes that “surprisingly, most of the state and federal courts deciding judicial discipline cases based on extrajudicial speech have not addressed the constitutionality of the code provisions involved.”

No kidding! That’s because there’s been precious little judicial guidance in general when it comes to the tension between the First Amendment and occupational speech restrictions, and next to none where lawyers and judges are concerned (this, despite the law being the most speech-intensive of the licensed professions). Nonetheless, what little there is out there points in the general direction of occupational speech being regulated subject to the same intermediate scrutiny standard applicable to commercial speech.

We also know that occupational speech regulation only goes so far. Lawyers don’t waive their First Amendment rights as a condition of Bar membership; they are free to opine and express themselves any way they want (or at least, to the same extent as any other citizen) as long as doing so doesn’t involve their clients or matters.

But what about judges? Is there something special about their roles that would lend itself to greater reach for occupational speech regulation? Professor Rambo makes the case in the affirmative, arguing that judicial speech – even far off the bench – should be regulated via the Pickering test applicable to public employees.

What’s the Pickering test? It’s a balancing test, which looks at the the interests of the employee in commenting on matters of public concern and the interests of the State – as the employer – in promoting the efficiency of the public services it performs through its employees. It doesn’t apply to things an employee might say as part of his or her job (it’s not a First Amendment violation for a government employer to discipline an employee for those), but rather only to those things a government employee says OUTSIDE of the job that may cause problems for the government employer’s mission.

That’s not much of an issue for most government employees, but it’s different for judges given their position in society. Judges are highly esteemed and viewed as neutral arbiters. The courts are very attuned to ensuring that judges avoid even the appearance of bias. A judge could be highly competent – and a paragon of objectivity – but that judge staking out positions on one “side” or another of contentious issues in the community will cause no end of trouble for the court.

As Rambo notes, the interest of the government employer in the Pickering test is “promoting the efficiency of the public services it performs through its employees.” She suggests that in the judicial context this means something more: protecting the judiciary from extrajudicial statements by judges that compromise “either the actual or the perceived independence, integrity or impartiality of the court.”

That sounds right, particularly since the “efficiency” of the government institution that is the court is best measured not by how quickly it churns through cases but rather by how independent and impartial it can be – both in reality AND appearance. And that means that judges – unlike lawyers – may be subject to occupational speech regulation that reaches far beyond the confines of the courtroom.